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One of the under-reported developments of this presidential election is the growing “vote-pairing” movement, in which John Kerry supporters from “safe” states promise to swap votes with Ralph Nader supporters from “swing” states.

In 2000, tens of thousands of voters participated in such exchanges, and that number is expected to grow in November.

Vote-pairing has been attacked as illegal and wrong by some political observers, including syndicated columnist Joseph Perkins of the San Diego Union-Tribune. On the contrary, it’s perfectly legal and — at least until better fixes come along — it is an appropriate response to real flaws in the way the United States elects presidents.

Americans vote for a slate of electors to the Electoral College, who in turn vote for president. In all but a few states, electors are assigned on a winner-take-all basis.

If Kerry wins 55 percent of the Tennessee vote, he gets 100 percent of Tennessee’s electors. (This is why it was possible for Al Gore to win the nationwide popular vote in 2000 but still lose in the Electoral College.)

Supporters of President Bush in hard-core Democratic states such as Massachussetts, and Kerry supporters in hard-core Republican states such as Mississippi, might as well stay home, for all the potential effect they can have on the presidential election.

This is a particular problem for progressive voters. Although progressives make up a slight majority in this country, conservative Republican presidential candidates can win if the progressive vote is split between the Democratic Party and third-party candidates such as Ralph Nader.

If you believe (reasonably enough) that the two major parties do not offer enough choices and that third parties should have their say, you face the prospect of “throwing away your vote” and actually helping to elect the candidate you dislike the most.

That’s what happened in Florida in 2000: The combined votes for Gore and Nader, who was the Green Party’s nominee, well exceeded the combined votes for George W. Bush and Reform Party nominee Pat Buchanan, regardless of how the hanging chads were counted.

Vote-pairing is an ingenious and effective solution to this problem. Voters log on to votepair.org, run by a group of voting rights scholars and reformers, and type in their state and presidential preference. Nader supporters in swing states are matched with Kerry supporters in states that polls show lie safely in either the Bush or Kerry column.

The voters communicate directly and promise each other to swap votes. Right now the movement targets progressive voters only, but there’s nothing to stop conservatives or libertarians from doing the same thing on the other end of the political spectrum. Either effort would contribute to a healthier, more diverse political system.

In 2000, six Republican state secretaries of state, led by California’s Bill Jones, tried to shut down vote-swapping operations, claiming they were illegal under the laws that ban the buying and selling of votes.

But such federal and state laws (including Tennessee’s) ban only trading something “of value,” such as money, for someone’s vote. They do not address a situation in which two voters agree, on the honor system, to swap their votes.

Having learned their legal lesson, no states have tried to stop vote-pairing in 2004. In fact, any attempt to do so would violate voters’ free speech and free association rights under the First Amendment.

For that reason, the California vote-swappers in the 2000 election sued Jones and others for First Amendment violations; although the case is still pending, a federal appeals court ruled last year in the vote-pairers’ favor.

Even better solutions to the problems with the “winner-take-all” approach to the Electoral College may be on the horizon.

In “instant runoff voting” (IRV), a voter ranks his or her preference — say, “1″ for Nader, “2″ for Kerry, “3″ for Bush. If a voter’s first-place choice fails to get a majority, those first-place votes are transferred to the voter’s second-place choice, and so on, until a candidate wins a majority and thus the election.

IRV is used to elect Ireland’s president, as well as national offices in Australia and the mayor of London. In the United States, it is used in San Francisco and in Republican Party conventions in Utah.

Endorsed by Republicans such as Sen. John McCain and Democrats such as Howard Dean, it is getting increasing attention at the state level: A recent poll showed a solid majority of Illinois voters favored adopting IRV for presidential elections.

Where it’s been used, this “majority-rules” approach has increased voter turnout; it also saves time and money by obviating a runoff election. (For more information, see fairvote.org.)

Another solution, not as good as IRV but still better than the status quo, is for states to assign electors proportionally: If Kerry won 55 percent of a state’s votes, he’d get only 55 percent of its electors.

Colorado may do precisely this in this November’s presidential election. Maine and Nebraska allocate electors based on the winner in each congressional district within the state.

All of these approaches are better than the current system, and none would require a constitutional amendment. Each state legislature could decide to adopt IRV or proportional allocation of electors, within its own borders.

And until such reforms come, vote-pairing will be there — legal, practical and a darn good idea.

Steven Mulroy is a law professor at the University of Memphis and a former voting rights litigator for the U.S. Justice Department. 

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